Sagmeister v. Foss

The opinion of the court was delivered by Stiles, J. — The claim for a lien set forth that the claimant, respondent here, claimed a lien upon a building located on the land described, “and also upon the interest of Levi W. Foss in the land upon which said building is constructed ... of which said lot the said Levi W. Foss was, at the time of the commencement of the said work, and the furnishing of the said materials, the owner, subject to the community interest of the wife of the said Levi W. Foss.” Appellant makes two objections, one of which applies to the lien and the other to the complaint, which named Levi W. Foss as the only defendant. First, The claim of lien shows upon its face that the claimant had knowledge that Foss was a married man, [321] and that, having such knowledge, he was bound by the; terms of the mechanics’ lien law (Gen. Stat., § 1667), to' give the name of the owner or reputed owner of the land! sought to be charged. Not having named his wife he; failed to comply with the statute, and therefore is not entitled to a lien. Second, Conceding that the noticewas sufficient, the wife was not made a party to the foreclosure-suit. Both these points we consider to be well taken.. Apparently the claimant set out to foreclose the husband’s - interest in the community property, his wife being still alive. This he could not do, as was decided in- Littell & Smythe Manufacturing Co. v. Miller, 3 Wash. 480. The judgment will be reversed and the cause dismissed without prejudice to an action at law for the balance re- • maining due upon the contract. Vendome-Turkish Bath Co. v. Schettler, 2 Wash. 457. Anders, C. X, and Hoyt, X, concur. Dunbar, X, not sitting.